Attorneys and deputies are legally required to ensure they act within the scope of the powers conferred to them through either a power of attorney, or deputyship order issued by the Court of Protection. They must also consider the preferences and instructions of the donor, in so far as they are able to communicate them or had communicated them prior to losing capacity, and must act in their best interests when making decisions on their behalf.

There are two types of lasting power of attorney and deputyship. One deals with the donor’s property and financial decisions and there is a separate one that deals with health and welfare decisions. An attorney or deputy can only make decisions in accordance with the powers they hold, for example, if an attorney wants to make a decision regarding the donor’s finances, they must hold power of attorney for property and finance. If they only hold power of attorney for property and finance, they cannot make decisions on health and welfare.

Attorneys and deputies are required to agree to and acknowledge their duties when agreeing to act. It is important that agreement is not given lightly.

An attorney’s and deputy’s powers are limited to those conferred to them through either a power of attorney, or deputyship order issued by the Court of Protection. In general, they must:

• Act in the donors’ best interests when making decisions on their behalf.
• Consider the preferences of the donor, in so far as they are able to communicate them or had communicated them prior to losing capacity.
• Understand the limitations on making a gift on the donor’s behalf or from the donor’s funds and seek the court’s approval when making a gift.
• Keep a complete set of records to evidence payments made on the donor’s behalf.
• A deputy must also consider the Code of Practice set out in the Mental Capacity Act 2005, which set out the range of duties owed.

If there are signs that an attorney or deputy is abusing their position, a referral may be made to the Office of the Public Guardian to consider that individual’s conduct, and their appropriateness to carry on in their role. Such investigations can lead to the removal of an attorney or deputy.

For professional legal advice on initiating an attorney or deputy investigation, or on seeking the removal of an attorney or deputy, call JMW today on 0345 872 6666, or complete our online enquiry form to request a call back from a member of our highly qualified team.